Defenseless On the Bayou

New Orleans gun confiscation is foolish and illegal

In the nearly two weeks since Hurricane Katrina, the government of New
Orleans has devolved from its traditional status as an elective
kleptocracy into something far more dangerous: an anarcho-tyranny that
refuses to protect the public from criminals while preventing people from
protecting themselves. At the orders of New Orleans Mayor Ray Nagin, the
New Orleans Police, the National Guard, the
Oklahoma National Guard, and
U.S. Marshals have begun
breaking into homes at gunpoint,
confiscating their lawfully-owned firearms, and evicting the
residents. "No one is allowed to be armed. We're going to take all the
guns," says P. Edwin Compass III, the superintendent of police.

Last week, thousands of New Orleanians huddled in the Superdome and the
Convention Center got a taste of anarcho-tyranny. Everyone entering those
buildings was searched for firearms. So for a few days, they lived in a
small world without guns. As in
other such
worlds, the weaker soon became the prey of the stronger. Tuesday's New
Orleans Times-Picayune
reported some of the grim results, as an Arkansas National Guardsman
showed the reporter dozens of bodies rotting in a non-functional freezer.

In the rest of the city, some police officers abandoned their posts,
while others joined the looting spree. For several days, the ones who
stayed on the job did not act to stop the looting that was going on right
in front of them. To the extent that any homes or businesses were saved,
the saviors were the many good citizens of New Orleans who defended their
families, homes, and businesses with their own firearms.

These people were operating within their legal rights. The law
authorizes citizen's arrests for any felony, and in the past (in the 1964
case McKellar v. Mason), a Louisiana court held that shooting a
property thief in the spine was a legitimate citizen's arrest.

The aftermath of the hurricane has featured prominent stories of
citizens legitimately defending lives and property. New Orleans lies on
the north side of the Mississippi River, and the city of Algiers is on the
south. The Times-Picayune
detailed how dozens of neighbors in one part of Algiers had formed a
militia. After a car-jacking and an attack on a home by looters, the
neighborhood recognized the need for a common defense; they shared
firearms, took turns on patrol, and guarded the elderly. Although the
initial looting had resulted in a gun battle, once the patrols began, the
militia never had to fire a shot. Likewise, the Garden District of New
Orleans, one of the city's top tourist attractions, was
protected by armed residents.

The good gun-owning citizens of New Orleans and the surrounding areas
ought to be thanked for helping to save some of their city after Mayor
Nagin, incoherent and weeping, had fled to Baton Rouge. Yet instead these
citizens are being victimized by a new round of home invasions and
looting, these ones government-organized, for the purpose of firearms
confiscation.

The Mayor and Governor do have the legal authority to mandate
evacuation, but failure to comply is a misdemeanor; so the authority to
use force to compel evacuation goes
no further
than the power to effect a misdemeanor arrest. The preemptive confiscation
of every private firearm in the city far exceeds any reasonable attempt to
carry out misdemeanor arrests for persons who disobey orders to leave.

Louisiana statutory law does allow some restrictions on firearms during
extraordinary conditions.
One statute
says that after the Governor proclaims a state of emergency (as Governor
Blanco has done), "the chief law enforcement officer of the political
subdivision affected by the proclamation may...promulgate
orders...regulating and controlling the possession, storage, display,
sale, transport and use of firearms, other dangerous weapons and
ammunition." But the statute does not, and could not, supersede the
Louisiana Constitution, which declares that "The right of each citizen to
keep and bear arms shall not be abridged, but this provision shall not
prevent the passage of laws to prohibit the carrying of weapons concealed
on the person."

The power of "regulating and controlling" is not the same as the power
of "prohibiting and controlling." The emergency statute actually draws
this distinction in its language, which refers to "prohibiting"
price-gouging, sale of alcohol, and curfew violations, but only to
"regulating and controlling" firearms. Accordingly, the police
superintendent's order "prohibiting" firearms possession is beyond his
lawful authority. It is an illegal order.

Last week, we saw an awful truth in New Orleans: A disaster can bring
out predators ready to loot, rampage, and pillage the moment that they
have the opportunity. Now we are seeing another awful truth: There is no
shortage of police officers and National Guardsmen who will obey illegal
orders to threaten peaceful citizens at gunpoint and confiscate their
firearms.

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Denver, Colorado 80203 Phone 303-279-6536. (email)webmngr @ i2i.org